The financial jeopardy of a surviving unmarried partner
The law of succession in Scotland is clear on who is entitled to inherit the estate of someone who has died. It is clear on the entitlements of a spouse or civil partner and children. However, it is completely silent on any automatic succession rights for a surviving unmarried partner.
When
a spouse or civil partner dies, their surviving spouse or civil partner have an
automatic entitlement to share in their estate. This entitlement applies
whether or not the deceased made a Will. However, the extent of that
entitlement does depend on whether the deceased spouse or partner drew up a
Will before they died.
Where the deceased did not make a Will
Where the deceased spouse or civil partner did not make a Will, the surviving spouse or civil partner has two elements of entitlement to share in the estate. These are, firstly Prior Rights and, secondly, Legal Rights. The surviving spouse or civil partner is entitled to both sets of rights.
Prior Rights
Prior rights are only enjoyed by the surviving spouse or civil partner. They are entitled to:
- The family home (up to the value of £473,000);
- The furniture and contents of the family home (up to the value of £29,000);
- £89,000 if the deceased did not have any children or £50,000 if they did.
Once Prior Rights have been satisfied, the surviving spouse or civil partner is then entitled to Legal Rights along with the deceased’s children.
It is important to note that if the Prior Rights use up the entire estate, there will be nothing left to satisfy Legal Rights.
Legal Rights
A surviving spouse or civil partner is entitled to a one half share in the moveable estate where the deceased had no children. Where the deceased had children, the surviving spouse or civil partner is entitled to a one third share in the moveable estate.
It is important to note that Legal Rights only apply to moveable estate and not heritable estate (generally, land and buildings).
Where the deceased made a Will
Where the deceased made a Will, the surviving spouse or civil partner along with any children are automatically entitled to only Legal Rights. That means the surviving spouse or civil partner is entitled to one half of the moveable estate where there are no children and one third of the moveable estate when there are children.
The remaining estate is dealt with under the terms of the Will.
Does an unmarried partner have any inheritance rights?
An unmarried partner has no automatic inheritance rights to the estate of their deceased partner. When an unmarried partner dies without a Will, the surviving partner has two choices. These are:
- To negotiate a share in the estate with the deceased’s legal beneficiaries; or
- To make an application to court to seek a share in the estate
In respect of the first option, there is no guarantee whatsoever that all the legal beneficiaries will agree to the surviving unmarried partner receiving a share in the estate. If the deceased is survived by a spouse or civil partner from a former relationship and had not divorced them, they would be entitled to share in the estate along with any children and not the unmarried surviving partner.
In respect of the second choice, the unmarried partner must make an application to the courts within six months of the deceased’s death to have their claim considered. That claim will then be decided by a sheriff who will need to weigh up all the evidence, possibly including counter claims by the deceased’s family.
How can unmarried couples prevent problems when one of them dies?
The only sure way of avoiding problems when an unmarried partner dies is for each to make a Will. When you make a Will, you can decide who should share in your estate. Of course, there will still be Legal Rights to contend with, but once they have been dealt with, the Will can direct how the remainder of the estate should be distributed.
Make a Will with Paris Steele, Solicitors, North Berwick and Dunbar, East Lothian
Our solicitors have many years of experience in advising clients on preparing their Wills and how Legal Rights can impact on an estate. Why not get in touch with us today and arrange an appointment to meet and discuss your requirements.